The San Diego apologetics organization Catholic Answers recently made the news when it asked the U.S. Supreme Court to allow it to sue the Internal Revenue Service for violation of its First Amendment rights.

At issue were two e-letters sent by founder Karl Keating questioning if Sen. John Kerry, the 2004 Democrat presidential candidate, should present himself for holy Communion because he is a Catholic who supports legalized abortion. The IRS had ordered Catholic Answers to pay excise taxes for 2004 and 2005, but later dropped the case. Catholic Answers wants to sue the IRS because it believes the threat of tax penalties will prevent such groups from speaking out on issues in the public arena.

With the 2012 presidential election less than a year away, the dispute raises the broader question: What can clergy in the pulpit and Catholic nonprofits say about politics without fear of IRS retribution?

Uneven enforcement

The answer should be anything, said Erik Stanley, senior legal counsel of the Alliance Defense Fund, which supports “the legal defense of religious freedom, the sanctity of life, marriage and the family.”

Bishops' Guidelines

The U.S. Conference of Catholic Bishops’ Office of General Counsel’s political activity guidelines takes a conservative approach when offering advice to tax exempt 501(c)(3) organizations such as dioceses or parishes on involvement in issues in the political realm. Here are a few highlights:

◗ Such organizations may engage in lobbying, so long as it does not include a “substantial” part of their total activities.

◗ First Amendment/free speech protections will not necessarily protect a 501(c)(3) that becomes involved in political campaigns or lobbying, as the organization can choose between a tax exempt status and political involvement.

◗ Lobbying on behalf of a ballot measure is acceptable, so long as it is limited.

◗ Individual Catholic leaders may become involved in political campaigns, providing they do so as individuals and not heads of their organizations. Hence, they cannot use the organization’s financial resources, facilities or personnel, and must clearly state that they are functioning as individuals and not heads of their organizations.

◗ If a candidate speaks at a church event, the opposing candidate must be given an opportunity to speak.

Currently, clergy and nonprofit organizations operate under the so-called Johnson amendment, a 1954 revision of the Internal Revenue Code authored by then-Sen. Lyndon Johnson. It states that nonprofit tax-exempt entities could not “participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of (or in opposition to) any candidate for public office.”

Previously, there had been little restriction on preachers’ or nonprofit charities’ free-speech rights in regard to political issues or candidates.

Essentially, Stanley told Our Sunday Visitor, the Johnson amendment has led two prohibitions: 1) clergy/nonprofits cannot support or oppose a particular candidate, and 2) clergy/nonprofits cannot make a substantial part of their efforts supporting or opposing a particular ballot measure.

However, Stanley said the IRS has been selective and inconsistent in enforcing the Johnson amendment.

“They’ve chosen to enforce it in a vague way,” Stanley told Our Sunday Visitor. “There is no bright-line rule about what speech does or does not violate the tax code.”

This uneven enforcement leads to intimidation, he said, as clergy and nonprofits “back away from crossing the line” and begin to engage in “self-censorship.”

“The IRS has silenced the voice of the Church on many issues on which the Church needs to be heard. Many politicians are shielded from moral scrutiny, and it’s been harmful to the whole society,” he said.

Retribution fears

Conversely, Stanley and the ADF believe there should be no restrictions on clergy/nonprofits to speak out on political issues, even endorsing a particular candidate. In an effort to initiate a debate on the issue of free speech, the ADF launched Pulpit Freedom Sunday (www.pulpitfreedom.org) four years ago. Beginning with 33 Catholic and non-Catholic churches in 2008 and involving 539 in 2011, pastors are asked to record sermons/homilies on political topics, including endorsement of or opposition to specific candidates, and then send them to the IRS requesting review. Should the IRS issue a threat to a particular church, the ADF offers to defend them free of charge. Thus far, the IRS has not offered a response to any of the recorded sermons.

“The IRS has a specialty in revenue collection, not constitutional law. So far, they’ve backed away from every constitutional challenge,” Stanley said.

Mathew Staver, founder and chairman of Liberty Counsel, an organization similar to the Alliance Defense Fund, said clergy should not worry about preaching what they believe to be the truth, even if it involves issues which are part of the political debate: “Pastors should always preach biblical values and the doctrine of the Church. It’s always safe to do so.”

The threat of IRS retribution, he believes, is “overblown.” He said, “No church has ever lost its tax exempt status.”

Staver said that some groups, such as Americans United for Separation of Church and State, send letters to pastors threatening to file complaints with the IRS if they address topics they deem political. But such efforts are mere intimidation, and go nowhere, he said.

Sometimes, he believes, when pastors are reluctant to preach the Gospel, there may be some other reason, such as that they are afraid to offend their congregations. That’s unfortunate, he said, because “people are looking for voices and leaders. They want to hear pastors who are leaders.”

Preachers have more leeway than religious organizations when it comes to protected free speech, he noted, although he still believes organizations like Catholic Answers should be able to say what they wish.

Clergy’s perspective

Deacon Keith Fournier of the Diocese of Richmond, Va., a constitutional law attorney, agrees that clergy should be able to speak freely from the pulpit: “Priests and deacons have every right to speak on moral issues without being bullied into silence.”

It’s a critical issue, he said, because many clergy are nervous about the possible repercussions of speaking on such topics despite the critical need the faithful have for instruction. He objects to the characterization of such issues as abortion as “politics.”

“The child in the womb is our neighbor, and he has a fundamental right to life. Is that politics? It’s a moral issue,” he told OSV.

Deacon Fournier said that Catholics should resist the use of punitive measures by entities such as the IRS to “prevent us from making statements on life issues and now, increasingly, on marriage.”

Deacon Fournier told OSV he hopes Catholic Answers’ efforts to sue the IRS will proceed. “The IRS strung out the case against Catholic Answers for a long time and finally withdrew the penalty, making the case moot in the eyes of the court. That’s a problem for Karl Keating and for all of us,” he added. “Someone can be put through the time and expense of an IRS investigation, and when it is dropped at the last minute, has no recourse.”

Fournier said that the threat of government retribution has never deterred him from preaching the truth at his own church, St. Stephen Martyr in Chesapeake, Va. When it comes to proclaiming the Gospel, “I am not afraid,” he said.